Suchergebnisse

The European Court of Human Rights (ECtHR) is composed of one judge per country that has ratified the European Convention on Human Rights (ECHR). When a case is brought against a country, that country has the privilege to have 'its' judge take seat ex officio. When the elected judge is unable to sit ex officio, the country may propose an ad hoc judge. Ad hoc judges do not need to pass the normal test of scrutiny as to their competence and impartiality, allowing governments to propose pro-government candidates in politically sensitive cases. Consequently, academic literature, legal practice and even judges of the Court have voiced concerns over the neutrality and quality of ad hoc judges. Changes have been made to the Convention mechanism and further changes are called for to ensure the neutrality of ad hoc judges. By doing statistical analysis, this article suggests that the actual voting behaviour of ad hoc judges may not be so problematic as sometimes suggested. This may be relevant for a decision to introduce further changes to the Convention mechanism and the extent of those potential revisions.

Under the current legal paradigm, the rights to privacy and data protection provide natural persons with subjective rights to protect their private interests, such as related to human dignity, individual autonomy and personal freedom. In principle, when data processing is based on non-personal or aggregated data or when such data processes have an impact on societal, rather than individual interests, citizens cannot rely on these rights. Although this legal paradigm has worked well for decades, it is increasingly put under pressure because Big Data processes are typically based indiscriminate rather than targeted data collection, because the high volumes of data are processed on an aggregated rather than a personal level and because the policies and decisions based on the statistical correlations found through algorithmic analytics are mostly addressed at large groups or society as a whole rather than specific individuals. This means that large parts of the data-driven environment are currently left unregulated and that individuals are often unable to rely on their fundamental rights when addressing the more systemic effects of Big Data processes. This article will discuss how this tension might be relieved by turning to the notion 'quality of life', which has the potential of becoming the new standard for the European Court of Human Rights (ECtHR) when dealing with privacy related cases.

In the realm of privacy and data protection – as in the fundamental rights framework in general – balancing has become the standard approach for dealing with legal disputes. It comes, however, with a number of practical and theoretical problems. This article analyses those problems and compares the method of balancing with the original approach of most human rights frameworks, such as the European Convention on Human Rights. It does so by analysing two cases in detail: the European Court of Human Right's case Delfi v. Estonia and the Court of Justice of the EU's judgment Coty v. Stadtsparkasse. From this analysis, it follows that the concept of balancing signals a shift away from the deontological and towards a utilitarian understanding of fundamental rights. This is not only of theoretical importance, as it could also mean that in time, human rights frameworks as such might become redundant.

Abstract
Fiduciary agents and trust-based institutions are increasingly proposed and considered in legal, regulatory, and ethical discourse as an alternative or addition to a control-based model of data management. Instead of leaving it up to the citizen to decide what to do with her data and to ensure that her best interests are met, an independent person or organization will act on her behalf, potentially also taking into account the general interest. By ensuring that these interests are protected, the hope is that citizens' willingness to share data will increase, thereby allowing for more data-driven projects. Thus, trust-based models are presented as a win–win scenario. It is clear, however, that there are also apparent dangers entailed with trust-based approaches. Especially one model, that of data trusts, may have far-reaching consequences.

The legal domain distinguishes between different types of data and attaches a different level of protection to each of them. Thus, non-personal data are left largely unregulated, while privacy and data protection rules apply to personal data or personal information. There are stricter rules for processing sensitive personal data than for 'ordinary' personal data, and metadata or communications data are regulated differently than content communications data. Technological developments challenge these legal categorisations on at least three fronts: First, the lines between the categories are becoming harder to draw and more fluid. Second, working with various categories of data works well when the category a datum or dataset falls into is relatively stable. However, this is less and less so. Third, scholars increasingly question the rationale behind the various legal categorisations. This book assesses to what extent either of these strategies is feasible and to what extent alternative approaches could be developed by combining insights from three fields: technology, practice and law.

Frontmatter -- Contents -- Introduction / Sloot, Bart van der / Groot, Aviva de -- 1. Privacy from a Historical Perspective / Keulen, Sjoerd / Kroeze, Ronald -- Legislating Privacy: Technology, Social Values, and Public Policy / Regan, Priscilla -- 2. Privacy from a Legal Perspective / Sloot, Bart van der -- Three Dimensions of Privacy / Roessler, Beate -- 3. Privacy from an Ethical Perspective / Sax, Marijn -- Nudging: A Very Short Guide / Sunstein, Cass R. -- 4. Privacy from an Economic Perspective / Lindgreen, Edo Roos -- Security, Privacy, and the Internet of Things (IoT) / Hypponen, Mikko -- 5. Privacy from an Informatics Perspective / Koot, Matthijs / Laat, Cees de -- Political Science and Privacy / Raab, Charles -- 6. Privacy from an Intelligence Perspective / Aerdts, Willemijn / Valk, Giliam de -- A Privacy Doctrine for the Cyber Age / Etzioni, Amitai -- 7. Privacy from an Archival Perspective / Schiphof, Tjeerd -- Medical Privacy: Where Deontology and Consequentialism Meet / Pierce, Robin -- 8. Privacy from a Medical Perspective / Koelewijn, Wouter -- Privacy Law – on the Books and on the Ground / Bamberger, Kenneth A. / Mulligan, Deirdre K. -- 9. Privacy from a Media Studies Perspective / Pierson, Jo / Zeeland, Ine Van -- Diversity and Accountability in Data- Rich Markets / Mayer-Schönberger, Viktor -- 10. Privacy from a Communication Science Perspective / Petronio, Sandra -- Still Uneasy: a Life with Privacy / Allen, Anita LaFrance -- 11. Privacy from an Anthropological Perspective / Geest, Sjaak van der -- About the Authors